Recently, in
Maryland v. King, the United States Supreme Court held that performing cheek swabs to collect
DNA for identification purposes from individuals arrested for serious
offenses is a legitimate booking procedure, like fingerprinting and photographing,
and therefore is reasonable under the Fourth Amendment.

The case involved Alonzo King, a man who was arrested for felony assault.
After his arrest, his DNA was taken by a cheek swab as part of Maryland's
routine booking procedure for individuals who have been arrested for serious
offenses. The DNA was later checked in the national database of DNA taken
from crime scenes (CODIS), and King's DNA matched DNA taken from an
unsolved rape case several years earlier. This match resulted in King's
conviction for the rape. On appeal to Maryland's highest court, the
court found the collection of King's DNA unconstitutional under the
Fourth Amendment as an unreasonable search.

In a 5-4 decision, the Supreme Court found that Maryland's DNA collection
booking procedure was a search, but that it was not unreasonable because
the government's interest in identifying arrestees outweighed the
individual privacy interests against the intrusion which was negligible.

The dissent, headed by Justice Scalia, eviscerated the majority opinion
noting that "[t]he issue before us is not whether DNA can
some day be used for identification; nor even whether it cantoday be used for identification; but whether it
was used for identification here." Justice Scalia pointed out that in the case before the Court, the
DNA collection procedures
could not be for identification of the arrestee since the collection and analyzing
process took far too long to be useful for identification. Further, the
Maryland law in question banned using the collected DNA for any purpose
other than purposes listed in the law, and identification was not a listed
purpose. Alas, with only three other Justices on his side, Justice Scalia
lamented, "[s]olving unsolved crimes is a noble objective, but it
occupies a lower place in the American pantheon of noble objectives than
the protection of our people from suspicionless law-enforcement searches.
The Fourth Amendment must prevail."

Shortly after the Supreme Court released
Maryland v. King, more issues sprang up implicating serious privacy concerns;
someone leaked classified information from the NSA that showed it is monitoring internet traffic using various
programs (PRISM, Boundless Informant, etc.) to try to root out terrorist
plots. The agency also has apparently obtained a secret court order providing it with
ongoing blanket access to Verizon's call logs. This order apparently requires no individualized suspicion and applies
to all Verizon subscribers in the US.

What does this mean for privacy? The Supreme Court
has already said that citizens have no reasonable expectation of privacy in information
stored or kept by others. Thus, communication information stored by cell
phone carriers and technology companies is probably not protected by the
Fourth Amendment for the purposes of the consumers, but can such blanket
monitoring by the government be reasonably expected? Repeated and constant
intrusions into the daily lives of citizens may result in a weightier
privacy interest than Alonzo King's diminished privacy interest in
preventing a negligible intrusion into his life. Then can the Fourth Amendment,
which protects an individual right, protect the rights of individuals together?